FREDERICK A. STOLZLE, JR.
Appeal from the Nineteenth Judicial District Court In and for
the Parish of East Baton Rouge State of Louisiana Docket No.
C664933. Honorable Richard "Chip" Moore, III, Judge
Frederick A. Stolzle, Jr. Plaintiff/Appellant Baton Rouge,
Louisiana In Proper Person
Michael P. Fruge Counsel for Defendant/Appellee Michael C.
Hendry Tony Clayton Port Allen, Louisiana
BEFORE: .WHIPPLE, CJ., McCLENDON, AND HIGGINBOTHAM, J.J.
appeal, the plaintiff challenges a judgment of the trial
court that sustained the defendant's peremptory exception
raising the objection of prescription. For the following
reasons, we affirm.
AND PROCEDURAL HISTORY
January 3, 2018, Frederick A. Stolzle, Jr. filed a pro
se petition for damages against Tony
Clayton. Therein, Mr. Stolzle asserted that he and
Mr. Clayton entered into a joint venture agreement to share
on an equal basis attorney fees in two separate personal
injury lawsuits. Mr. Stolzle further alleged that Mr. Clayton
received $400, 000.00 in attorney fees in each case, for a
total of $800, 000.00, and that Mr. Clayton owes him his
share of the attorney fees in the amount of $400, 000.00. In
response, Mr. Clayton filed a peremptory exception raising
the objection of prescription, asserting that, on its face,
Mr. Stolzle's petition was prescribed. Specifically, he
maintained that, based on a ten-year prescriptive period and
the allegations in the petition, prescription began to run in
2007 and ended in 2017, and Mr. Stolzle did not file his
petition until the beginning of 2018.
hearing, the trial court sustained the exception and
dismissed Mr. Stolzle's claims. Mr. Stolzle now appeals
the August 16, 2018 judgment.
objection of prescription is a peremptory exception.
LSA-C.C.P. art. 927A(1). At the trial of a peremptory
exception, evidence may be introduced to support or
controvert any of the objections pleaded, when the grounds
thereof do not appear from the petition. LSA-C.C.P. art. 931.
Ordinarily, the party pleading the exception of prescription
bears the burden of proving the claim has prescribed.
However, when the face of the petition reveals that the
plaintiff's claim has prescribed, the burden shifts to
the plaintiff to show why the claim has not prescribed.
Hogg v. Chevron USA, Inc., 09-2632 (La. 7/6/10), 45
So.3d 991, 998. When, as in this case, no evidence is
introduced at the hearing to support or controvert the
exception of prescription, the exception must be decided upon
facts alleged in the petition with all allegations accepted
as true. Cichirillo v. Avondale Industries, Inc.,
04-2894 (La. 11/29/05), 917 So.2d 424, 428. If no evidence is
introduced to support or controvert the exception, the
manifest error standard of review does not apply, and the
appellate court's role is to determine whether the trial
court's ruling was legally correct. Harris v.
Breaud, 17-0421 (La.App. 1 Cir. 2/27/18), 243 So.3d 572,
578-79. Moreover, as a general rule, prescription statutes
are strictly construed against prescription and in favor of
the claim sought to be extinguished. Taranto v. Louisiana
Citizens Property Ins. Corp., 10-0105 (La. 3/15/11), 62
So.3d 721, 726.
prescriptive period applicable to an action is determined by
the character of the action disclosed in the pleadings.
Fishbein v. State ex rel. Louisiana State University
Health Sciences Center, 04-2482 (La.
4/12/05), 898 So.2d 1260, 1265. Where an attorney retained in
a case employs or procures the employment of another attorney
to assist him, as regards the division of the fee, the
agreement constitutes a joint adventure or special
partnership. Duer and Taylor v. Blanchard, Walker,
O'Quin and Roberts, 354 So.2d 192, 194-95 (La.
1978); McCann v. Todd, 203 La. 631, 14 So.2d 469
(1943). The interest that each attorney possesses under such
an agreement is the right to participate in the fund
resulting from the payment of the fee by the client.
Therefore, in a suit by an attorney against another attorney
to recover, pursuant to such an agreement, a portion of the
fee collected by the latter party from the client is not one
for the recovery of attorney fees, but rather is one for
breach of the agreement to share in the fund resulting from
the payment of the fee. Duer, 354 So.2d at 195. The
applicable prescriptive period is ten years. See LSA-C.C.
art. 3499; Duer, 354 So.2d at 195.
hearing on the exception, Mr. Clayton disputed that he ever
entered into an agreement with Mr. Stolzle. He argued that,
regardless, Mr. Stolzle's claim is prescribed. Mr.
Clayton stated that the only dates relevant to prescription
in the petition were the dates of October 22, 2002, when some
type of arrangement was allegedly entered into between Mr.
Stolzle and Mr. Clayton to share attorney fees, and late
2007, when Mr. Stolzle alleged that it became difficult to
contact Mr. Clayton. Mr. Clayton acknowledged that the
petition failed to identify when the alleged fees became due,
but he argued that at the very latest, from the allegations
in the petition, it can be inferred that would have been in
late 2007. Therefore, because Mr. Stolzle did not file his
lawsuit until January 3, 2018, Mr. Clayton asserted that the
suit was prescribed on the face of the petition.
Stolzle did not offer any evidence at the hearing and his
oral argument was waived due to the late filing of his
opposition to the exception. See Louisiana District Court
Rules, Rule 9.9. At the ...